(dissenting). It must be conceded that if there is any substantial evidence in this record to support the finding of the Board to the effect that the 1936 contract expired on October 20, 1939, the courts are without power to set such finding aside. (New York State Labor Relations Act, § 707; National Labor Relations Bd. v. Waterman Steamship Corp., 309 U. S. 206; Matter of Stork Restaurant, Inc., v. Boland, 282 N. Y. 256, 267.) “ The courts may not weigh the evidence or reject the choice made by the Board where the evidence is conflicting and room for choice exists.” (Lehman, Ch. J., in Matter of Stork Restaurant, Inc., v. Boland, supra.) In my opinion there exists substantial evidence in this record to support the finding of the Board that the Amalgamated on or prior to July 17, 1939, elected to terminate the 1936 contract. Its letter of July 17, 1939, states that it is inclosing a copy of “ the new contract.” This language imports prior negotiations at least and might be construed as an agreement reached. In addition, the president of the Amalgamated testified that it was not the intention of the union to continue for another three years the old agreement as it existed. The Board could conclude from the wording of the letter, the testimony of this witness, and the fact that an automatic renewal of the old contract would be in direct conflict with the provisions of the constitution of the Amalgamated, that the intention of the union was to abrogate the old contract. Where the doing of an act is not disputed but its validity or effect depends upon the intent with which it was done, the person who did the act may testify as to what his intention was at the time. (Mc Kown v. Hunter, 30 N. Y. 625; Noonan v. Luther, 206 id. 105.) It is true that a contrary inference could be drawn from other testimony but “ room for choice ” existed and the Board’s finding should not be disturbed.
Nor do I believe that a labor contract in and of itself bars the selection of another bargaining agent during the lifetime of such contract. Such contracts are subject to the exercise of the police power of the State. (Manigault v. Springs, 199 U. S. 473.) There is no valid reason why employees should be barred from selecting another bargaining agent, even though such employees might be bound by the contract entered into by the rejected bargaining agent. Labor unions, as such, have no vested interest in agreements determining conditions of employment of its members. If a majority of such members determine to select a different union to act as their bargaining agent, they are free to do so, subject to reasonable rules of the State Labor Relations Board.
The order should be reversed, the application of the respondents denied and the cross-application of the appellants granted.
Order affirmed, with fifty dollars costs and disbursements.